–Sean Molloy, Research Associate, Newcastle Law School, Newcastle University

In response to
Covid-19, countries across Africa are declaring a state of emergency (these
include Botswana, Sierra Leone, Liberia, Botswana, Ethiopia and Senegal, to
name a few). Doing so allows the authorities, in times of urgent necessity, to
take actions necessary to safeguard national security, maintain law and order,
protect citizens’ lives and property, keep essential public services working,
concentrate relief resources and direct them to the areas of greatest need, and
in general to restore normality. While providing a degree of flexibility
necessary to respond to the current pandemic, declaring a state of emergency
also brings significant risks, particularly those relating to human rights (Ali
Yildiz and Olga
Hałub-Kowalczyk). Emergency powers must, therefore, be monitored scrupulously
and on an ongoing basis. Yet, this requires legal certainty and clearly defined
parameters regarding what is and is not permissible under a state of emergency.
This post argues that the current Covid-19 brings into stark relief a
long-standing ambiguity relating to derogations versus claw-back clauses under
the African system of human rights. In order to ensure uniformity in how
emergency measures are monitored, this will require clarification sooner,
rather than later.

Protecting
Human Rights in Times of Emergency

Countries under
states of emergency can be breading grounds for human rights infringements (Ali
Yildiz and Olga
Hałub-Kowalczyk). Even when proscribed by law, states of emergency can lead
to abuses of power through, for instance, the suppression of internal
opposition to ‘solidify autocracy’ (Radosveta
Vassileva). Despite restrictions placed on how states ought to legally
curtail rights, states can act beyond these confines, impinging on the right to
privacy, freedom of assembly and free movement, in ways that are overly
excessive and disproportionate. In other cases, a de jure state of emergency can
become de facto when measures are extended beyond the stipulated timeframe of a
declared state of emergency (Human
Rights Watch). This can mean measures enacted to limit rights temporary
become the norm. As such, emergency powers, while often necessary to provide
states the flexibility required to respond to situations like Covid-19 must be
monitored. How though do we ensure that states of emergency do not lead to
human rights violations or become the new norm? This question has taken on
particular salience in the current context and invoked different responses (see
different positions from Alan
Greene and Kanstantsin
Dzehtsiarou ). It also poses questions for the African system of human
rights.

In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances. The only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in Article 27(2), that is, that the rights of the Charter “shall be exercised with due regard to the rights of others, collective security, morality and common interest” (para. 41).

Including
derogation clauses and defining what is and is not required to justify
resorting to them, enables monitoring and enforcement mechanisms to assess
state compliance. For instance, Human Rights Committee, pursuant to art 4(1) of
the ICCPR both elaborates on the legal paraments of it (CCPR General Comment No.
29: Article 4) and monitors state activities to ensure that these
requirements are met (see Human Rights Committee
“Consideration of Reports Submitted by States Parties under Article 40 of the
Covenant: Comments of the Human Rights Committee: Egypt (1993). Alan
Greene assesses, albeit in reference to derogations under Art. 15 European
Convention on Human Rights (ECHR), that if the exigencies of the COVID-19
pandemic require exceptional measures and deviation from some dimensions of the
full enjoyment of all human rights, then it is best to introduce those measures
through a framework that entails a commitment to legality and to the full
restoration of normalcy as soon as possible. For Greene, it would be the
failure to use the derogation option that today ‘risks normalising exceptional
powers and permanently recalibrating human rights protections downwards’. Derogations
he suggests, provide a framework with which to monitor state actions during
emergency and to ensure that any deviations from normal obligations are
exceptional and do not become the norm (see further posts from Scheinin;
Zghibarta;
Dzehtsiarou;
Istrefi).

The omission of a
derogation clause could mean that during the Covid-19 pandemic, the Charter
will be ignored, and will not exercise a restraining influence as states opt to
deviate from existing obligations in order to response to the pandemic. Conversely,
the omission of a derogation clause could mean that the integrity of the entire
African Charter remains applicable in all situations, including under a state
of emergency declared in response to Covid-19. Derogation clauses, for some,
are not measures by which states can protect human rights. Rather, they are
viewed as States’ license to violate human rights as they “officially condone a
deviation from pre-existing treaty commitments precisely when those commitments
are most at risk of being undermined” (Hafner-Burton
M et al). It is also unclear how this approach is compatible with
derogation clauses under state constitutions (various constitutions permit
states to derogate from human rights obligations (See, as examples, Constitution
of Nigeria (1999), sec 45(2); Constitution
of Cape Verde (1992), art 26; 31; Constitution
of Mozambique (2004), art 72; Constitution
of Rwanda (2003), art 137; Constitution of
Uganda (1995), art 44).

In response, while
omitting a general right to derogate, the African Charter does contain numerous
so-called clawbacks clauses. These clauses permit, in normal circumstances,
breach of an obligation for a specified number of public reasons. For instance,
under article 6 of the African Charter, liberty and security of the person and
freedom from arbitrary arrest are to be protected “except for reasons and
conditions previously laid down by law.’ Article 8 (freedom of conscience and
religion) must be guaranteed “subject to law and order”, while
freedom of assembly under article 11 must be protected “subject only to
necessary restrictions provided for by law in particular those enacted in the
interests of national security, the safety, health, ethics and rights and
freedoms of others.”

There has been
concern expressed regarding the considerable margin of discretion left to
individual states to enact legislation which will prescribe the conditions when
individual civil and political rights may be suspended (Shaw 2007).
For Cees
Flinterman and Cathernine Henderson, claw-back clauses permit already unwilling states
to engage in wanton and routine breach of the Charter obligations using the
reasons of public utility or been criticized as offering governments extensive
ability to infringe on certain individual rights.

To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter (para. 66).

This approach
supports the view of Kanstantsin Dzehtsiarou who,
in light of the response of European states, argues that limitations such as
these are especially crucial in case of emergency to hold on to human rights.
They help to keep the authorities accountable and within certain limits because
the crisis legislation giving new extensive powers to the executive branch can
have long-lasting disproportionate effects on our lives, our freedoms and our
societies. They provide a means, in the context of Africa, by which both
Commission and the Court are directly engaged in monitoring the approaches
adopted by African states in response to Covid-19.

Nevertheless,
these developments notwithstanding, there are also problems associated with
this approach. There is no end to limitations as proscribed in the African
clawback clauses. While derogations can have the effect of monitoring the
temporary failure to adhere to human rights obligations, clawback clauses
include no such restriction. Limitation is usually a permanent restriction that
partly takes away particular rights whereas derogation is a temporary
suspension that completely eliminates certain rights in exceptional times. Including
a derogation clause within the Charter could bring the African instrument
directly in line with state constitutions. Of course, an argument ought to be
made that it is state constitutions that must conform to international law. But
here, international law as laid down by the ICCPR, which permits derogations on
one hand, and the African Charter, which does not on the other, are themselves
incompatible.

No Time for Uncertainty

As with Greene and Dzehtsiarou debate on the derogation question in the context of the ECHR, there are competing arguments, each with significant merit, regarding the best way to approach human rights and states of emergency in Africa. Yet, the interesting nature of these debates also masks a level of ambiguity that can have significant consequences on human rights during the ongoing pandemic. Are states to follow their constitutions? International law? Regional law? Does the omission of a derogation clause enable states to forum shop? What role for African monitoring mechanisms when, in direct contradiction of the Charter, states derogate pursuant to their constitutions? It is likely that both the Commission and the African Court on Human and Peoples’ Rights will be called upon to rule on these matters in the context of Covid-19 responses in the future. However, this post argues that the current Covid-19 crisis brings into stark relief a long-standing discourse on the role or derogations and claw-back clauses on the continent and now, more now than ever, clarity on this long-standing debate is needed.

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